Boam v. Sewell , 41 Idaho 718 ( 1925 )

Judgment entered on a verdict December 28, 1922, in favor of respondents was vacated by order of the trial judge March 22, 1923. An appeal taken from that order, Boam v. Sewell, 40 Idaho 524,234 P. 153, was not on the merits of the case, but involved solely the order vacating the judgment, wherein this court held as a matter of procedure under the statute that the original judgment could not be vacated in the manner in which it was, and that the same should be reinstated. The remittitur was filed in the district court on March 25, 1925, and pursuant to the directions therein the clerk of said court again entered the same judgment on said date.

From that judgment, so entered pursuant to saidremittitur on March 25, 1925, the appellant sought to appeal, May 18, 1925.

In Miller v. Prout, 32 Idaho 728, 187 P. 948, the court had under consideration the following situation: A judgment was entered July 17, 1917, and on April 15, 1918, thereafter, on motion of appellants and others, the court made an order under C. S., sec. 6726, purporting to vacate a portion of the original judgment. Notice of appeal was filed July 9, 1918. The court said the only point involved was whether the appealable time began to run from the date of the rendition of the original judgment on July 17, 1917, or the date of the modification thereof, April 15, 1918, holding to the former. The present appellant, respondent in the former adjudication, had in the lower court, made a motion to set aside a verdict, which that court acted upon, granting the motion wholly without right or authority of law. This being error, the former judgment stood as if it had never been disturbed. (Christersonv. French, 180 Cal. 523, 182 P. 27; Hull v. West Chicago ParkCommrs., 185 Ill. 150, 57 N.E. 1; Hester v. Baskin (Tex.Civ.App.), 184 S.W. 726; Jones v. Hancock Sons, 117 Va. 511,85 S.E. 460, 3 A.L.R. 126; Kinsella v. DeCamp, 15 Ohio C.C. 494; 2 Freeman on Judgments, 4th ed., sec. 381; 4 C. J. 1205, sec. 3249, n. 10; 34 C. J. 390, sec. 600, n. 51.)

Appellant had a right to appeal or move for a new trial before or at the time he moved to set aside the verdict. On such motion he might have secured a new trial or, on appeal from a denial thereof, have had it determined that he was entitled to one. He chose not to do this but to make a motion, unfounded and ungrounded in the statute, which proved on appeal to have been erroneous. In the meantime, his time to appeal from the judgment expired, and he cannot now appeal more than ninety days after the rendition of the original judgment. This is especially true considering the record in this case, that from the date of entry of the judgment, December 28, 1922, until March 22, 1923, a period of eighty-four days, he did not appeal from the judgment which he concedes was then in existence; nor when theremittitur went down from this court on March 25, 1925, did the appellant attempt to appeal from such judgment until May 18, 1925, a further period of fifty-four days, during all of which time, even on appellant's contention, the judgment was in effect. In other words, having exhausted eighty-four days out of ninety days without appealing, he should be willing to concede that he had but six days left after the remittitur was lodged in the lower court in which to appeal.

This court has no jurisdiction of the appeal and it should therefore be dismissed, and it is so ordered. Costs awarded to respondents.

William A. Lee, C.J., and Taylor, J., concur.

Budge, J., took no part in the opinion.